Tuesday, September 20, 2016

It may be time to dust off those Second Amendment challenges
to felon-in-possession prosecutions. In Binderup v. Attorney General United States, Nos. 14-4549 & 14-4550 (3d Cir. Sept. 7, 2016), the Third Circuit granted
as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), holding that two challengers could not be forever prohibited from possessing firearms based on prior convictions for
non-violent misdemeanors (punishable by more than one year’ imprisonment) that
never resulted in any jail time.

Binderup was based
on D.C. v. Heller, 554 U.S. 570 (2008) (establishing the personal right to possess firearms under the Second Amendment) in which the Supreme Court explained that firearms prohibitions
like those for “felons and the mentally ill” were presumptively lawful
regulatory measures. Id. at 627 n. 26 . In Binderup, the
Third Circuit explained that because the lawfulness of a ban on possession of firearms
by felons is just a presumption, this means the presumption can be rebutted. Slip op., at
28.

In granting the as-applied challenges, the court explained:

The Challengers’ isolated, decades-old, non-violent
misdemeanors do not permit the inference that disarming people like them will
promote the responsible use of firearms. Nor is there any evidence in the
record to show why people like them remain potentially irresponsible after many
years of apparently responsible behavior. Without more, there is not a
substantial fit between the continuing disarmament of the Challengers and an
important government interest. Thus, § 922(g)(1) is unconstitutional as applied
to them.

Slip op., at 39. The court heard the case en banc, and the 184-page opinion was highly
fractured.

Lyle Dennison explains that this is the first time a federal
appeals court has granted a Second Amendment challenge when the person was
plainly prohibited from possessing firearms under 18 U.S.C. § 922(g). He also
explains that the Supreme Court has not taken an as-applied challenge under the
Second Amendment post-Heller, leading
to a possibility that this could be the case.

Importantly, a bloc of five judges in the majority concluded
that 18 U.S.C. § 922(g)(1) is unconstitutional when used against anyone whose crime
did not involve violence or any other signs that it was a serious offense.Thus, under this rationale, if a defendant
does not have a prior violent crime in their past, then there is an argument that 18 U.S.C. § 922(g) cannot permanently prohibit the defendant from
exercising their Second Amendment rights.